Changes to Working Time Regulations allow for carry over of holiday that is untaken due to coronavirus
The new Working Time (Coronavirus) (Amendment) Regulations 2020 (the “Regulations”), which are now in force, have amended the Working Time Regulations 1998 to allow workers to carry untaken holiday forward into the next two holiday years where that holiday has not been taken because of the coronavirus pandemic. The change applies to all employers. Whilst we believe the intention of the Regulations is to ensure that workers in vital sectors who are unable to take holiday do not lose that holiday, the condition for carrying over (“it was not reasonably practicable for a worker to take some or all of the leave”) is broad and may lead to workers trying to carry over leave as a preference rather than as a necessity.
However, the new rule only applies to the four weeks annual leave provided for by the EU’s Working Time Directive, not the additional 1.6 weeks annual leave provided for by UK domestic legislation, or any contractually enhanced leave entitlement. Current rules, and the contract of employment, will continue to apply to those portions of leave.
Currently, this four weeks’ holiday entitlement cannot be carried forward, meaning workers lose their holiday if they do not take it. However, it is hoped that the change will ease the existing requirements on business to ensure that workers take their holiday in any one year whilst also allowing certain staff to continue working in the effort against coronavirus without losing out on their holiday entitlement.
The Regulations also provide that:
– workers can receive a payment in lieu if their employment terminates before the worker has taken the carried-over holiday; and
– an employer will only be able to refuse a worker’s request to take carried-over leave on particular days where the employer has ‘good reason’ to do so. The Regulations do not define what a ‘good reason’ is.
Employers will still need to manage holiday entitlements in order to achieve effective staffing levels over the coming months, and may well face issues caused by a potentially large numbers of workers “saving” their holiday for use later in the year once the pandemic eases.
Should you need to discuss this or any other employment query, please do get in touch with a member of our Employment team.
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